EMPLOYMENT LAW

1. Who Qualifies for Protection under the ADA
2. Reasonable Accommodation Requirements
3. Medical Questionnaires and Fitness for Duty
4. False Representations During the Hiring Process (ADA & Workers’ Compensation)

Who Qualifies for Protection under the ADA

The ADA was signed into law in 1990 with the basic goal to make opportunities in the workplace more accessible to people with disabilities. The ADA Amendments Act (ADAAA) was adopted in 2008 to broaden the definition of “disability” and thereby expand the “zone of protection” that had been limited over the years by several US Supreme Court decisions.

The ADA prohibits discrimination on the basis of disability in private employment (those employing 15 or more employees) and State and local government or other public employers (regardless of size in most cases). Likewise, the ADA also protects co-workers and other individuals who may experience retaliation in response to advocating for the rights of someone who is protected under the ADA.

Basic Rules – To be protected by the ADA, one must have a disability or have a relationship or association with an individual with a disability. An individual must have a “disability.” Does that seem simple enough? It’s not. In legalese, the ADA protects individuals who:

1. Have a physical or mental impairment;
2. That substantially limits one or more major life activities.

The ADA also protects:

1. Individuals who have a history or record of such an impairment; and
2. Individuals perceived by others (or regarded by others) as having such an impairment.

Defining Impairment – The ADA does not specifically name all of the impairments that qualify as disabilities. The ADAA regulations did provide the following, broad definition of “impairment” to include:

1. Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or
2. Any mental or psychological disorder, such as an intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

“Impairments” typically though do not include certain physical characteristics or conditions that are within “normal” ranges – weight, eye and hair color, pregnancy or being left-handed, as long as the condition is not the result of a physiologic disorder. Also common personality traits are usually not “impairments”, including things like poor decision making capability or a short temper, as long as the traits are not the result of an underlying mental health condition that would independently qualify as an impairment itself.

“Major Life Activities” – Remember, the impairment must “substantially limit” a “major life activity. Major life activities broadly include (but are not limited to):

1. Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working; an
2. The operation of a major bodily function, including functions of the immune system, special sense organs and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. The operation of a major bodily function includes the operation of an individual organ within a body system.

This expansive definition adopted in 2008 made it clear that when medical conditions (such as cancer, heart disease, diabetes, sleep disorders, etc.) affect “bodily functions” they qualify as impairments. This is likely true even when there is no outward appearance of impairment. So, an insulin dependent diabetic likely qualifies for protection due to the impact diabetes has on the endocrine system.

“Substantially Limits” – Likewise, the ADAAA gives us few strict definitions on what it means to “substantially limit” a major life activity. Just remember, the ADAAA was intended to significantly broaden the scope of protection and liberally expand the class of individuals who are protected. Therefore, it’s not meant to be difficult for a condition to be considered as substantially limiting a major life activity. Consider the following points:

• Under the ADAA more conditions will be considered to be “substantially limiting”;
• Employers should apply an individualized assessment, or “case by case” approach. Remember, an impairment or condition that was not substantially limiting to one employee may very well be to another. Don’t apply broad rules across classes from employees who have the same impairment;
• In most situations, mitigating measures should not be considered . In other words, employers should evaluate their employees’ impairment without factoring in whether medication, therapy, assistive devices, etc. improves, mitigates or controls their impairment;
• Episodic impairments or those in remission should be treated as active. It’s likely no defense to argue that a qualified impairment was temporarily in remission or suppressed when making an ADA determination;
• It only takes one – Under the ADAAA, impairment need only limit one major life activity to qualify for protection;
• Temporary conditions can qualify in many cases. For example, prior to the ADAAA most courts found that a temporary lifting restriction following an injury would not qualify for protection under the ADA. Now, employers are required to take a more individualized look at the temporary condition and use duration as only a factor, not the only factor. For example, a temporary condition that is expected to be fairly short in duration might very well be covered if it is sufficiently severe.

Reasonable Accommodation Requirements

While the ADAAA did not change or alter the definition of “reasonable accommodation”, court decisions over the past several years have. Reasonable accommodations are modifications to the job or working conditions that enable employees or applicants protected by the ADA to perform the essential functions of a job. If an employee or applicant qualifies for ADA protection, then the employer must consider all reasonable accommodations unless they can prove that the accommodation would impose an undue hardship on them.

We could devote an entire website to reasonable accommodation issues and there would likely still be unanswered questions. The following is just a list of some of the traditional types of accommodations that we see requested and also some of the more emerging trends:

• Making existing facilities accessible;
• Modified work schedules in certain situations;
• Modifying equipment and other modifications to work stations;
• Providing qualified readers or interpreters;
• Reassignment to an open position for which the individual is otherwise qualified to perform;
• Temporary light duty assignments;
• Extension of unpaid leaves of absence beyond that which is required by the FMLA;
• Telecommuting where physical presence on site is not an essential job function.

Employers should remember, though, they are not always obligated to implement the accommodation that has been requested by an applicant or employee. They can propose their own, alternate accommodation as long as it allows the employee or applicant to perform the essential job functions. The key here is communication between employer and individual. The EEOC and the courts encourage and expect an “interactive” dialogue between employers and their employees to address and resolve these issues and so does our employment team.

Also, employers can resist accommodation requests if they can prove that the accommodation imposes an undue hardship on them. Undue hardship is defined as “significant difficulty or expense in, or resulting from, the provision of the accommodation. It can include accommodations that would be unduly costly, extensive, substantial or disruptive or “would fundamentally alter the nature or operation of the business.” Some examples of accommodations that might not be “reasonable” include:

• Demanding a “helper” or assistant to perform essential job functions, i.e., asking for two people to do the job of one;
• Requesting second or third-chances to meet performance standards.

Before making any decisions, we recommend taking a very close, case-specific look at your situation to determine if an individual’s reasonable accommodation request should be permitted, or perhaps declined based on undue hardship. We encourage frequent conversations with the employee to encourage a fair, non-discriminatory resolution. And, of course, if you have case specific questions we would be more than happy to talk to you.

Medical Questionnaires and Fitness for Duty

Of course, the ADA protects qualified individuals with disabilities from adverse treatment during the job application and employment screening process. Likewise, the North Carolina Equal Employment Practices Act (“NCEEPA”) and the North Carolina Persons with Disabilities Protection Act (“NCPDPA”) apply to give additional protection to applicants (and employees).

One topic of increasing interest for employers is the use of medical examinations, medical inquiries, fitness for duty tests, etc. during the application process and during the employment relationship. When administered in a manner consistent with state and federal law, these inquiries can be an important part of the employment process. Such inquiries and examinations can also promote a safe working environment by identifying employees and applicants who will require reasonable workplace accommodations. If used improperly these inquiries can expose employers to liability.

For the most part, it is illegal for employers to conduct medical examinations or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature and severity of such disability.

Thus, an employer generally cannot inquire as to whether an individual has a disability at the pre-offer stage of the selection process. In other words, pre-employment (i.e., “pre-offer”) medical examinations are generally prohibited. Likewise, the prospective employer should not generally inquire about a job applicant’s workers’ compensation history.

However, an employer may make limited, pre-employment inquiries into the ability of an applicant to perform essential job-related functions. While, broad “disability related” questions during the application and pre-employment process are largely prohibited, an employer may lawfully ask all applicants “Can you perform the essential functions of this job, with or without reasonable accommodation?” or “Can you meet the attendance requirements of the job?” It’s helpful to have a list of the main requirements of the job when asking these questions.

Medical examinations or physicals are authorized under federal and North Carolina law after a conditional offer of employment is made and before the commencement of work on the job. These are commonly referred to as “post-offer, pre-employment” examinations.

The ADA specifically provides that a conditional offer of employment may be made to a job applicant contingent on the results of a physical and medical examination but only if:

1. All employees in the same job categories are required to take such an examination regardless of disability and;
2. The medical information obtained is collected and maintained on separate forms and in separate information files apart from the employee’s general personnel file. This information must be treated as a confidential medical record by the employer.

If the examination screens out an individual because the medical examination reveals that the individual cannot meet a job qualification standard, the employer should be able to show that the particular test that was applied, or medical standard that was used was “job related” and “consistent with business necessity.” Also, before declining an applicant the employer should consider whether a reasonable accommodation analysis should be followed if the individual qualifies for protection under the ADA.

False Representations During the Hiring Process (ADA & Workers’ Compensation)

The North Carolina Workers’ Compensation Act now gives employers the ability to deny responsibility for benefits claimed by employees who willfully misrepresent their physical capabilities during the hiring process. Benefits can be denied under the Act if the employer shows that during the hiring process:

1. The employee knowingly and willfully made a false representation as to the employee’s physical condition;
2. The employer relied upon one or more false representations by the employee and that reliance was a substantial factor in the employer’s decision to hire the employee; and
3. There was a “causal connection” between the false representation and the employee’s injury.

Employers need to be very cautious to ensure that if they decide to ask these sorts of questions, they do so in compliance with the ADA and other state disability law. For example, while these questions may be presented legally to an applicant on a post offer, pre-employment medical questionnaire once a conditional offer of employment has been made, they might not be legally be asked on a job application (depending on the wording of the questions).

Our employment team has experience reviewing and drafting post-offer, pre-employment medical questionnaires that are designed to identify and protect employees requiring reasonable accommodations and protect employers from applicants who are not forthright during the hiring process. Let our employment lawyers help you stay ahead of the game.

Social Media & Computer Usage Policies

If employers intend to lawfully regulate their employees’ computer, electronic and social media usage, then they should have legally compliant, written policies in place. The types of policies and their scope of coverage vary from employer to employer. This is certainly not a “one size fits all” area of the law. Employers need to think carefully about adopting policies that are legally enforceable, non-discriminatory and reasonably tailored to protect their legitimate business interests.

For example, would you be surprised to hear that the National Labor Relations Board (NLRB) thinks it is unlawful for a covered employer to discipline an employee who started a Facebook group page that vocally and publicly criticized the company and its management? Or, similarly, that the NLRB has invalidated social media policies that have overbroad prohibitions against “damaging or defaming” the company on the Internet?

So, what are well-intentioned employers to do? When and how can they regulate employees’ critical or otherwise inappropriate social media postings? How can they conduct meaningful social media investigations, and discipline employee misconduct without violating state or federal employment laws addressing social media?

It is highly recommended that any company drafting a social media, computer or tablet usage policy seek counsel. Our NC Employment Law team will draw from years of experience working with public and private sector employers to develop a policy that best suits your organization’s needs. If you already have policies in place, we also recommend having them reviewed to make sure they are up to date. Of course, we would be glad to do that for you too.

Discrimination & Harassment

Unfortunately, for many employers the road to a discrimination lawsuit is paved with the very best of intentions. Using ad hoc social media background searches can be a very good example of how some employers find themselves on the first steps down that troubling and costly road. Most of you probably know that The Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act (ADA) prohibit asking applicants or employees about certain protected information related to genetic information, health conditions and disabilities.

But what happens when an innocent Facebook or Google search reveals that an applicant is six months pregnant, or suffers from multiple-sclerosis? If the candidate later doesn’t get the job for other legitimate, non-discriminatory reasons, the employer might find itself with the burden of fully explaining and proving the bases for the non-discriminatory hiring decision.

If employers insist on using social media searches as a screening or monitoring tool, we highly recommend talking with an experienced employment lawyer to help establish a uniform and consistent policy (including a designated “searcher,” consistent use of documented, non-discriminatory search terms, etc.). But keep in mind, an employer’s purposeful collection of background information on social media may raise the inference that the information collected in the search was relied on in making the hiring decision.

With social media blurring the lines between social and professional, there has been an increase in charges of harassment arising from social media, particularly sexual harassment. Can unwelcome advances between manager and subordinate employee on social media, outside of work, rise to the level of sexual harassment and create liability for the employer? What about inappropriate or explicit emails exchanged between co-workers on personal email accounts? Social media and similar computer usage issues have made this area of employment relations a brave new world.

Social Media & Electronic Usage Policy

Selecting model policies to fit your organization‘s needs takes much more than a “one size fits all” approach. The list of considerations for employers below is just that—a guidepost list of topics to think about when employers are drafting or reviewing their media and computer usage policies. This list isn’t complete—it’s not meant to be—but we’ve found this quick primer gets employers thinking in the right direction about their social media practices.

Do Consider:

• Creating written policies as part of a personnel manual or handbook to clearly define the employer’s expectations regarding social media and computer usage.
• Internal policies that clearly govern and define how you, the employer, will use social media as a non-discriminatory recruiting tool and have a select number of decision makers in charge for monitoring and executing the policy directives.
• Having separate policies governing the use of employer-owned tablets, laptops or other mobile devices that are likely to spend time away from the employer’s work site.
• Restricting publication or distribution of confidential, proprietary information & trade secrets.
• Limiting access to social media (and or public internet sites) on devices during work hours.
• Installing IT filters to restrict access to certain offensive, inappropriate internet sites.
• Prohibiting employees from posting content on their private social media accounts that is an unauthorized statement in the name of the employer or could be construed as a view or policy of the employer.
• Prohibiting communications that would violate attorney-client privileges.
• Prohibiting communications that would violate financial disclosure laws.
• Taking a “big picture” approach that accounts for the prevalence of social media, technology and instant communication in all aspects of our lives.

Don’t:

• Adopt policies that illegally restrict protected speech if you are a public employer and beware of similar prohibitions applicable to private employers according to the National Labor Relations Board.
• Attempt to regulate employee’s “friendships” on social media sites, unless a specific complaint is made by an employee related to another co-worker.
• Demand that employees to seek the employer’s permission before posting something on their private social media account
• Broadly or ambiguously prohibit employees from discussing business related issues on social media.
• Adopt strict policies that discipline employees for an internet presence which depicts or describes purely private, legal lifestyle choices or preferences.
• Adopt any policy that unreasonably stifles discussion about employment-related issues, including wages, benefits, rights and job requirements.

Social Media as a Business Tool of the Employer

Social media can be an excellent promotional and business development tool for employers of all types and sizes. A staggering number of potential clients, customers and business partners use an employer’s social media presence as a “first look” at the organization. Just as employers must be cautious in regulating employee use of social media, so they too should be mindful of the risks associated with social media as a marketing tool. Keep in mind, the people in charge with monitoring and updating content on your organization’s social media sites are speaking on your behalf. And they are speaking to a worldwide audience, in real time. Scared yet? Don’t be. We can help counsel your organization on using social media effectively and legally to promote your business.

Employers should consider a variety of threshold questions when using social media as part of a larger development plan—Why you are using social media? Will it help your company in productivity or hinder it? What kind of behavior do you want to regulate? What kind of training, if any, do you want to provide your employees who are responsible for content on your social media sites?

A good place to start is to consider the “5 Rs,” originally presented by Jeanne Meister in a February 7, 2013, Forbes article, “To Do: Update Company’s Social Media Policy ASAP.”

Reason – Use reasonable etiquette just as you would in person.
Represent yourself – Anonymous profiles yield more negative content.
Responsibility – Make sure your content is factually correct and does not violate the law.
Respect – The internet is a permanent record. Will you regret this later?
Restraint – Before you post content, reread your draft to ensure that it’s something you are comfortable being associated with you, and your company, forever.

At Teague Campbell we have years’ worth of business partners and clients who have made social media work for them as part of an effective marketing strategy. So, if you have a relevant non-legal issue or question, and we don’t have the immediate answer for you, we can put you in touch with someone who does. Our NC labor law attorneys know that sometimes the best help we can offer our clients is using our network of resources built over almost 70 years to make connections.

The following are the most common, and the most highly litigated topics in North Carolina:

1. Title VII Claims
2. Equal Pay Claims
3. Age Discrimination Claims
4. North Carolina Employment Claims

Title VII of the Civil Rights Act of 1964

Title VII applies to most private and public employers. Title VII prohibits discrimination against “any individual.” Though there are many potential types of discrimination, Title VII generally prohibits discrimination in the hiring, training, promotion, and termination of employees. Title VII specifically prohibits discrimination on the basis of (1) Race, (2) Color, (3) Sex, (4) National Origin, and (5) Religion.

The Equal Pay Act

The Equal Pay Act (EPA) is part of the Fair Labor Standards Act (FLSA) and prohibits discriminatory pay based on sex. While there are some exceptions, the EPA applies to all employers including federal, state, and local governments, and labor unions.

To establish a case under the EPA, an employee must prove: (1) that the employer has paid different wages to employees of opposite sexes, (2) that said employees hold jobs that require equal skill, effort, and responsibility; and (3) that such jobs are performed under substantially similar working conditions.

In determining whether particular work is “equal,” our courts will look to whether the work is “substantially equal” rather than identical. In so doing, the courts will look to skill, experience, training and ability, in addition to equal efforts and responsibility. The type of working conditions will also be considered.

In determining whether the wages are “equal,” the courts can consider actual wages, profit sharing, expenses, guarantees, bonuses, uniform cleaning allowances, insurance, housing, use of vehicles, or fringe benefits.

The Age Discrimination in Employment Act of 1967

The Age Discrimination in Employment Act of 1967 (ADEA) prohibits against treating an employee or applicant differently because of his or her age, and specifically prohibits discrimination against people who are 40 or older. Though there are multiple types of discriminatory actions, the ADEA generally protects hiring, firing, pay, job assignments, promotions, layoffs, training and fringe benefits. With some exceptions, the ADEA applies to most private and public employers.

The law under the ADEA is parallel with the law under Title VII. Specifically, an employer may be liable for intentional and unintentional discrimination just as in the disparate treatment and disparate impact claims under Title VII. Similarly, it is unlawful to harass a person because of their age, and an analysis similar to the hostile work environment claim would be applied to determine if an employee has a valid age harassment claim.

North Carolina Employment Claims

The Equal Employment Practices Act (EEPA), N.C. Gen. Stat. § 143- 49A, is the North Carolina law addressing discrimination in employment. The EEPA is very similar to Title VII and its counterparts, and makes it unlawful for a business establishment with fifteen or more employees to discriminate against any individual on the basis of a race, religion, color, national origin, age, sex, handicap or disability.

In addition, it is worth noting that North Carolina also recognizes several employment related torts which require proof of intentional or negligent conduct, including but not limited to:

• Wrongful Discharge in violation of public policy
• Negligent Hiring, Supervision and Retention
• Tortious Interference
• Defamation
• Malicious Prosecution
• Abuse of Process
• Intentional Infliction of Emotional Distress

No policy is foolproof, but these general NC employment law guidelines should help get the conversation started.

Hiring: What You Can & Should Ask

Discrimination on the basis of race, color, national origin, religion, sex, sexual orientation, disability, and age, among other classes, is illegal. An employer should not question applicants about these areas or treat candidates differently based on one of the above categories.

Employers should, however, ask questions about relevant qualifications and the requirements of the position. An employer should ask whether a candidate can safely perform the essential functions of the position. If a candidate raises the issue of a disability, then the employer should carefully consider the candidates rights under the Americans with Disabilities Act, which is covered in a general overview here:

In North Carolina, recent legislative changes have provided some defenses to employers when applicants misrepresent their capabilities in a work application and suffer an injury as a result. An employer must establish that (1) an employee knowingly and willfully made a false representation as to their physical condition in the employment application or in a post-offer medical examination; (2) the employer relied on that misrepresentation and the reliance was a substantial factor in the decision to hire the employee; and (3) the injury for which a claim is subsequently made is causally connected to the employee’s misrepresentation.

Termination Checklist

When the decision to terminate an employee is made, it is important to work to reduce the potential exposure for a discrimination claim. Of course, you cannot always prevent a claim from being filed, but following a developed procedure can help reduce the chances of this occurring and make claims easier to defend. A termination checklist should be developed based on the specifics of the employer; however, these general points should be a good starting point for developing a policy.

• Personnel Policies (follow your policy)
• COBRA (issuing COBRA letters)
• Company Property (assessing and re-acquiring company property)
• Exit Interview (explaining termination)
• Network access (removing network access)
• Wage and Hour Issues (final paycheck, what you can and can’t deduct)

Handling an Unemployment Benefits Claim

You decided to end the employment relationship for one reason or another, and now you have received notice that your former employee has filed a claim for unemployment benefits in NC. Maybe the employment relationship ended for cause, or maybe the company decided to downsize. First, you will receive a request for information from the agency.

The inquiry will ask for background information about the employment, including the first and last day worked, wages earned, etc. You will also be asked for the reason for separation and are provided additional space to describe the reasoning for the separation in detail. If an employee was terminated for misconduct, then you will want to provide additional details regarding the misconduct, any applicable employment policies, etc. North Carolina recently amended the basis for a disqualification for misconduct. The standard is now essentially a gross negligence standard. In order for an employee to be disqualified the employee must have engaged in:

1. Conduct evincing a willful or wanton disregard of the employer’s interest as is found in deliberate violation or disregard of standards of behavior that the employer has the right to expect of an employee or has explained orally or in writing to an employee; or
2. Conduct evincing carelessness or negligence of such degree or recurrence as to manifest an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to the employer.

As you can see, this is more than a negligence standard. Put another way, if an employee makes a careless mistake that results in property damage, s/he most likely will not be disqualified for misconduct. The legislature has provided the following examples of misconduct; however, these are not absolutes:

1. Violation of the employer’s written alcohol or illegal drug policy.
2. Reporting to work significantly impaired by alcohol or illegal drugs.
3. Consumption of alcohol or illegal drugs on the employer’s premises.
4. Conviction by a court of competent jurisdiction for manufacturing, selling, or distributing a controlled substance punishable under G.S. 90-95(a)(1) or G.S. 90-95(a)(2) if the offense is related to or connected with an employee’s work for the employer or is in violation of a reasonable work rule or policy.
5. Termination or suspension from employment after arrest or conviction for an offense involving violence, sex crimes, or illegal drugs if the offense is related to or connected with the employee’s work for an employer or is in violation of a reasonable work rule or policy.
6. Any physical violence whatsoever related to the employee’s work for an employer, including physical violence directed at supervisors, subordinates, coworkers, vendors, customers, or the general public.
7. Inappropriate comments or behavior toward supervisors, subordinates, coworkers, vendors, customers, or to the general public relating to any federally protected characteristic that creates a hostile work environment.
8. Theft in connection with the employment.
9. Forging or falsifying any document or data related to employment, including a previously submitted application for employment.
10. Violation of an employer’s written absenteeism policy.
11. Refusal to perform reasonably assigned work tasks or failure to adequately perform employment duties as evidenced by no fewer than three written reprimands in the 12 months immediately preceding the employee’s termination.

All of the examples reference intentional conduct. After the initial inquiry, the agency will render a decision. Either party can appeal. If the decision is unfavorable to the employer, then the employer should carefully analyze whether an appeal is the best course of action. An appeal is typically handled with a telephonic hearing. Both sides can present evidence, in document form and with witnesses. The agency can issue subpoenas to require attendance. Either party may hire an attorney or proceed pro se.

Following a decision, either party may appeal for a higher level review. This may be done based on an appeals statement and the prior record, or an additional hearing may be ordered. Additionally, higher level review can consist of oral arguments that are held in Raleigh.

The State Personnel Act

The North Carolina State Personnel Act of 1975 (SPA) is one of the largest exceptions to the at-will employment doctrine in North Carolina. The SPA governs the general employment of the vast majority of state employees. The SPA also applies to county mental health, social services, health and emergency management departments. Certain managerial and policy making positions are exempt from the SPA.

If an employee is covered by the SPA, they have due process rights and can only be terminated for “just cause.” Generally speaking, the employee must be given notice of the concerns against them, given an opportunity to respond to the concerns, and the final employment decision must be made by an impartial decision maker.

On the local level, many towns and counties have adopted similar exclusions to the at-will employment doctrine. It should be noted however, that passing an Ordinance creates these sorts of exclusions, where passing a resolution or simply updating a handbook typically does not.

The SPA also provides specific advertising and recruitment regulations that should be considered when a SPA position becomes available.

First Amendment Considerations

In the case of Pickering v. Board of Education, 391 U.S. 563 (1968), the United States Supreme Court held that a public employee is entitled to only some free speech rights during times of public employment. Two primary rules have emerged from the line of cases following Pickering:

1. When an employee is speaking as part of his or her official job duties, there is no First Amendment protection.
2. When an employee speaks on matters of personal interest, and not as a citizen upon matters of public concern, there is generally no First Amendment protection. However, if the employee is speaking on matters of public concern, sometimes there will be First Amendment protection.

The above analysis will generally involve balancing the employee’s interest in exercising free speech rights with the governmental employers’ interest in avoiding disruption. As a result, when considering whether disciplinary action should be taken as a result of an employee’s public statements, specific consideration should be given to this balancing test.

In addition, the First Amendment generally prohibits a public employer from interfering with an employee’s political beliefs. In other words, most public employees cannot be fired due to their political beliefs. The clear exception here is for an upper level policy maker where political party is a requirement for the position.

Fourth Amendment Considerations

The Fourth Amendment typically protects against unreasonable searches and seizures. Due to the nature of employment involved, these protections are different for public employees and employers.

Searches

An employee typically has an expectation of privacy in their workspace such that the employee must give consent, or the employer must obtain a warrant before searching a workspace. However, a public employer can search an employee’s workspace without a warrant. Even so, the employer must have reasonable, individualized suspicion that the search will in fact reveal misconduct. Generally speaking, an employee has an expectation of privacy in their desks, file cabinets, briefcases, handbags, and book bags. In determining whether the search was valid, the courts will balance the government’s interest against the level of intrusion on an employee.

Drug Testing

Drug testing by a public employer constitutes a search under the Fourth Amendment. Generally, a drug test is allowed where there is reasonable, individualized suspicion that the employee is using illegal drugs. Where the employee is employed in a safety sensitive job, random drug testing is allowed. A safety sensitive job is one in which the duties would endanger the public or other employees if the employee was under the influence. The primary example here is a police officer. There are very specific statutes in North Carolina which govern the administration and use of drug tests.

Personnel Files as Public Records

In 2010, the North Carolina General Statutes underwent an overhaul of the statutes governing personnel records. There are individual statutes for a multitude of public entities such as state, municipal, county, mental health, public schools, community colleges, and public health entities. Each statute is a bit different, but generally speaking, the revised statutes establish the following basic rules:

1. A document is part of a personnel file even if it is not in the actual “personnel file.” The file consists of “any information” gathered by the employer.
2. Most of the information in a personnel file is confidential. The notable exceptions are the employee’s:
   • Name
   • Age
   • Dates of original employment
   • Terms of employment contract
   • Date and amount of each increase or decrease in salary and date and type of each promotion, demotion, transfer, suspension or change in classification, with a reason for each change in classification.
   • Date and type of any change in classification due to disciplinary reasons, including a copy of any written notice setting out the reason for the action.
3. The employee and the active supervisors may see the employee’s personnel file.
4. Other governmental officials can see the employee’s personnel file only if it is “necessary” to a proper function of the official’s duties.
5. Only in special circumstances may the confidential portions of a personnel file be disclosed.

Retirement & Benefits Laws

North Carolina provides many different types of retirement systems for public employees including the Teachers’ and State Employee’ Retirement System, the Local Governmental Employees’ Retirement System, the Legislative Retirement System, the Firefighters and Rescue Squad Workers’ Pension Fund System, the Consolidated Judicial Retirement System, and the State and Local Law Enforcement Officers’ Retirement System.

The requirements of these retirement programs are very specific, and all public employers should give sufficient consideration to the requirements and proper administration of each of these programs.

In the event that a public employer attempts to change, modify or reallocate any type of retirement benefits, including but not limited to pension or health care benefits, close consideration should be given to what each specific employee was promised and whether the specific employee has vested in any type of benefit. It is also important to note that the same level of protection applies after retirement, and generally speaking, a public employer should treat its retirees similar to its employees.

As is the case with any employer, a public employer should give employees notice of any changes to its policies, and should update its employee handbook or policy manual accordingly.

One of the most commonly implicated federal laws governing uniformed services members’ employment rights is called the “Uniform Services Employment and Reemployment Rights Act.” That’s a mouthful, so we’ll call it “USERRA,” which is still a mouthful.

Our employment attorneys in Raleigh and Asheville frequently get asked, “So, does USERRA apply to my organization?” The short answer is, “Yes.” USERRA applies broadly to any employer (person, institution, organization, or other entity) that pays salary or wages for work performed or that has control over employment opportunities. There are no exceptions to coverage for the type of organization (i.e. charitable or government) or for small employers. We hear from smaller employers frequently about the challenges reemployment can present, especially after long periods of uniformed services. We’re here to help guide employers, small and large through those challenges.

While the two laws in effect are quite different, conceptually, uniform service leave under USERRA most closely resembles the concept of unpaid, job-protected leave under the Family Medical Leave Act (and if you need help understanding FMLA rights and responsibilities, don’t worry, we can help with that, too). USERRA rights can be triggered by voluntary or involuntary uniformed service in peace and wartime.

Under USERRA, qualified service members returning home and to work that are assigned certain rights and, the employers of these service members assigned some responsibilities. Broadly, there are two central components of USERRA:

1. A prohibition on discrimination in the employment of uniform service members.
2. A mandate of reemployment for returning service members.